ALJDEC decisions subject to certification as final

08F-R089024-BFS · Department of Fire Building and Life Safety · 2008-11-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2008 APPEARANCES: Complainants appeared on their own behalf; Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Phoenix, on November 13, 2008, at 1:30 p.m. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent House Mart Factory Outlet, LLC, is, and at all times material hereto was, a licensed retailer of manufactured homes in the State of Arizona, holding a Class D-8 License, No. 7731. 2. Complainants, Richard and Rose Keast, filed this action seeking recovery from the Consumer Recovery Fund in the amount of $850.00.

3. Complainants purchased a manufactured home from Respondent pursuant to written sales agreement in July, 2007. 4. Shortly after delivery, the marriage line began to separate. Complainants reported the problem to Respondent. Shortly thereafter, Respondent hired a company by the name of Trim Out, Inc. (“Trim Out”) to conduct warranty repairs of the marriage line.

5. On March 18 and 19, 2008, Trim Out. performed the required warranty repairs including tape and texture of the marriage line, related drywall repairs, finish carpentry and painting. 6. On July 15, 2008, Trim Out served a Claim of Lien in the amount of $850.00 on Complainants. Complainants filed a complaint with the Department of Fire, Building and Life Safety (“Department”) and on September 17, 2008, the Department verified the complaint as follows: “ 1) We received lien from Trim Out, Inc. for warranty work they did on our home. Trim Out, Inc. was contracted by House Mart Factory Outlet, LLC. VERIFIED. DEALER TO CORRECT.”

7. Upon Verification, the Department notified the Complainants that, because Respondent is no longer licensed with the Department, Complainants were eligible to file a claim against the Recovery Fund. 8. As a direct and proximate result of Respondent’s failure to pay Trim Out, Inc. for warranty work ordered by Respondent, Complainants have incurred costs of $850.00 to remove the lien placed on their home by Trim Out. The $850.00 sought is a reasonable and necessary amount to remove the lien.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §§41-2190.C. and A.R.S. 41-1092. 2. The preponderance of evidence at the administrative hearing proved that Complainants suffered monetary damages resulting from Respondent’s failure to pay Trim Out for warranty work performed on behalf of Respondent, said monetary damages which are compensable within the statutory scheme of the Consumer Recovery Fund, set forth in A.R.S. § 41-2190, et. sec., in the amount of $850.00.

RECOMMENDED ORDER In view of the foregoing findings of Fact and Conclusions of Law it is hereby ordered that the Department of Fire, Building and Life Safety, Office of Manufactured Housing, commence and finalize payment to Complainants from the Consumer Recovery Fund in the amount of $850.00 in damages. It is further ordered, in accordance with A.R.S. § 41-2190.D, that the Respondent’s Class D-8 License, No. 7731, be suspended until the licensee has repaid in full, plus interest at the rate of ten per cent per year, the amount paid from the Consumer Recovery Fund on the licensee’s account.

Done this day, November 13, 2008

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Robert Barger, Director Department of Building and Fire Safety - LTA ATTN: Debra Blake 1110 West Washington Avenue, Suite 100 Phoenix, Arizona 85007

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826